Citation Nr: 0015531
Decision Date: 06/13/00 Archive Date: 06/22/00
DOCKET NO. 99-00 927 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder.
2. Entitlement to an evaluation in excess of 10 percent for
service-connected right wrist disability.
ATTORNEY FOR THE BOARD
T. S. Tierney, Counsel
INTRODUCTION
The veteran served on active duty from July 1988 to December
1988, and had subsequent service in the Army Reserve until
July 1996.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana, which denied service connection for
post-traumatic stress disorder (PTSD) and granted service
connection for postoperative right wrist fracture, evaluated
as 10 percent disabling from June 4, 1997.
During the pendency of this appeal, the veteran moved and her
claims file was transferred from the RO in New Orleans,
Louisiana, to the RO in Houston, Texas.
The Board notes that on VA Form 9, dated in June 1998, the
veteran requested a Travel Board hearing before a member of
the Board. The veteran was notified that a hearing was
scheduled for December 1999. She failed to report to the
hearing and the evidence of record does not show that she
requested that the hearing be rescheduled.
FINDINGS OF FACT
1. There is no medical evidence of PTSD in service; there is
no competent evidence that the veteran currently suffers from
PTSD; and there is no competent evidence of record that links
a diagnosis of PTSD to a verified in-service stressor.
2. The veteran has constant, aching pain in her right wrist,
crepitus, and some limitation of motion of the right wrist;
there is no evidence of ankylosis of the right wrist.
CONCLUSIONS OF LAW
1. The veteran's claim of entitlement to service connection
for PTSD is not well-grounded. 38 U.S.C.A. § 5107 (West
1991).
2. The criteria for an evaluation in excess of 10 percent
for postoperative fracture of the right wrist have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§
3.321, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5299-
5215 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for PTSD
A. Factual Background
In regard to the veteran's claim for service connection for
PTSD, she contends that she was sexually assaulted on two
occasions in service and that those experiences resulted in
physical injury, bouts of depression and alcohol abuse. She
reported that the first assault occurred in March 1989 and
the second one in June 1989 by another soldier. In regard to
the first assault, in a June 1997 statement, the veteran
noted that the perpetrator was J. H., who was the Command
Sergeant in charge of personnel. She claims that he made
physical advances toward her while they were walking on the
beach and she rejected his advances by stepping away from
him, causing her to fall on a rock which fractured her wrist.
She further noted that she waited many years before reporting
this incident because J. H. informed her that if she reported
it she would not receive medical coverage and her promotion
potential would be affected.
The veteran's service medical records show that she fell and
fractured her right wrist in March 1989 while on active duty.
This occurred at the same time as the alleged first sexual
assault. After the veteran injured her right wrist, she was
taken to a private medical facility. A medical record dated
March 31, 1989, notes a history from the veteran that she
fell and landed on some stairs, injuring her right wrist. A
service medical record dated in May 1989 notes that one year
and five months earlier, the veteran fell down stairs at the
Reserve Center. The service medical records show additional
treatment for the veteran's right wrist disability. None of
the service medical records contains evidence of a sexual
assault at the time of the March 1989 injury to her right
wrist. The service medical records also are negative for
evidence of a sexual assault in June 1989.
In regard to the incident in March 1989 in which the veteran
injured her right wrist, the evidence contains service
records including affidavits dated March 31, 1989, from two
military personnel, R. C. and J. H., the later of whom the
veteran has alleged sexually assaulted her, causing her to
fall and injure her right wrist in March 1989. According to
these affidavits, on the evening of March 30, 1989, the
veteran, R. C. and J. H. left the United States Army Reserve
Center in Bay City, Texas, to get something to eat. When
they returned from dinner, the veteran slipped on the front
steps of the Reserve Center while attempting to enter the
building. She hit the concrete and broke her right wrist.
R. C. and J. H. immediately transported the veteran to the
emergency room at Matagorda General Hospital where she was
treated, released, and instructed to return in the morning.
With regard to the alleged second sexual assault, in the
veteran's statement received in June 1997, she noted that it
occurred in June 1989 when she was returning from two-weeks
of active duty training at a college and B. H. assaulted her
while she was sleeping. According to the veteran, she
reported this incident and there was an investigation.
However, the charges were dismissed.
The veteran received private medical treatment for her right
wrist disability while she was in the Reserves. None of
these records of treatment from 1989 to 1992 shows that the
veteran reported a sexual assault in either March 1989 or
June 1989.
In June 1997, the RO requested information from the United
States Army Crime Records Center in regard to the alleged
sexual assaults. In a response dated in July 1997, this
center informed the RO that a search of the Army criminal
file indexes revealed no files of the United States Army
Criminal Investigation Command responsive to the RO's request
for information.
A VA examination for PTSD was conducted in August 1997. At
the examination, the veteran reported that she had been
assaulted on two occasions while in the Reserves. She
reported that J. H. verbally and physically harassed her.
The veteran reported that at times he would fondle her and
have her fondle him while they were riding in his vehicle.
On March 30, 1989, while out to dinner with him and another
soldier, when the third person passed out, J. H. asked her to
go for a walk and they
walked out onto a pier where he tried to put his arms around
her. She dodged his physical advances, lost her footing,
slipped and fell injuring her wrist, elbow and shoulder. The
veteran further stated that she reported the incident to her
friends and family but not to her superiors. She went along
with the story developed by J. H. as to how she had fallen
because she feared for her job. In regard to the second
assault, the veteran reported at the examination that she and
another female solder returned from guard duty, were locked
out of the women's barracks and slept outside the door. She
woke up and Specialist G. H. was massaging her breasts. She
reported this incident to her superiors. Her claim was
investigated and dismissed. The veteran reported that she
had been extremely distressed over the military's handling of
these events. According to the examiner, the events reported
by the veteran did not meet the criteria for PTSD as set
forth in DSM-IV [Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition. Washington, DC, American
Psychiatric Association, 1994]. The examination report does
not note that the veteran complained of or that the examiner
observed current psychiatric symptoms which could be
manifestations of PTSD. A diagnosis of PTSD was not
rendered.
B. Analysis
Service connection for disease or disability may be granted
when the evidence reflects that the disease or disability was
either incurred in or aggravated by active military service.
38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303,
3.304 (1999).
During the pendency of this appeal, 38 C.F.R. § 3.304(f) was
amended, effective March 7, 1997. 64 Fed. Reg. 32807-32808
(1999). The amended version of section 3.304(f) provides:
Service connection for post-traumatic stress disorder
requires medical evidence diagnosing the condition in
accordance with § 4.125(a) of this chapter; a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred.
The Board notes that in Cohen v. Brown, 10 Vet. App. 128
(1997), the United States Court of Appeals for Veterans
Claims (Court) points out that in 1996 the VA adopted the
diagnostic criteria set forth in DSM-IV. The Court notes
that the criteria changed from an objective ("would evoke ...
in almost anyone") standard in assessing whether a stressor
is sufficient to trigger PTSD, to a subjective standard. The
criteria now require exposure to a traumatic event and
response involving intense fear, helplessness, or horror. A
more susceptible individual may have PTSD based on exposure
to a stressor that would not necessarily have the same effect
on almost anyone. The sufficiency of a stressor is
accordingly, now a clinical determination for the examining
mental health professional.
If the evidence pertaining to a claim for service connection
for PTSD does not show that a veteran was engaged in combat
with the enemy or that the claimed stressors are related to
such combat, there must be corroborative evidence of the
claimed stressor. See 38 U.S.C.A. § 1154(b) (West 1991);
Zarycki v. Brown, 6 Vet. App. 91, 98- 99 (1993).
In February 1996, VA established special evidentiary
procedures for PTSD claims based on personal assault. See VA
Adjudication Procedure Manual M21-1, Part III, para. 5.14(c)
(Feb. 20, 1996). VA recognizes that assault is an extremely
personal and sensitive issue and many incidents of personal
assault are not officially reported. Therefore, additional
development through alternative sources may be necessary to
provide credible evidence of inservice stressors, even if
military records contain no documentation that a personal
assault occurred. Id. The evidence does not have to prove
that the incident occurred. See Patton v. West, 12 Vet. App.
272 (1999).
However, the threshold matter to be considered is whether the
veteran has submitted a well-grounded claim for service
connection for PTSD. Pursuant to 38 U.S.C.A. § 5107(a), a
person who submits a claim to VA has the burden of providing
evidence sufficient to justify a belief by a fair and
impartial individual
that the claim is well grounded. A well-grounded claim as
one that is plausible; a claim that is meritorious on its own
or capable of substantiation. Murphy v. Derwinski, 1 Vet.
App. 78, 81 (1990).
For a claim to be well grounded, there must be (1) a medical
diagnosis of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between an in-service disease or injury and the
current disability. Where the determinative issue involves
medical causation, competent medical evidence to the effect
that the claim is plausible is required. Epps v. Gober, 126
F.3d 1464, 1468 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App.
341, 343-344 (1996); Caluza v. Brown, 7 Vet. App. 498, 506
(1995). For the purpose of determining whether a claim is
well grounded, the credibility of the evidence is presumed.
See Robinette v. Brown, 8 Vet. App. 69, 75 (1995).
A claim for service-connection for a disability must be
accompanied by evidence which establishes that the claimant
currently has the claimed disability. See Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski,
3 Vet. App. 223, 225 (1992) (absent proof of a present
disability there can be no valid claim). An allegation that
a disorder is service connected is not sufficient; the
veteran must submit evidence in support of a claim that would
justify a belief by a fair and impartial individual that the
claim is plausible. 38 U.S.C.A. § 5107(a); Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992). The quality and
quantity of the evidence required to meet this statutory
burden of necessity will depend upon the issue presented by
the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).
Where the determinative issue involves medical etiology or a
medical diagnosis, competent medical evidence that a claim is
"plausible" or "possible" is required for the claim to be
well grounded. See Epps v. Gober, supra at 1469 (adopting
the Court's prior definition of a well-grounded claim as set
forth in Caluza, 7 Vet. App. at 506); Grottveit, 5 Vet. App.
at 93. This burden may not be met merely by
presenting lay testimony, as lay persons are not competent to
offer medical opinions. See, e.g., Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992).
The Board finds that the veteran's claim for service
connection for PTSD is not well grounded. The evidence of
record does not show a current diagnosis of PTSD and there is
no medical evidence that the veteran currently has PTSD. The
only evidence to support her claim is her allegation that she
has PTSD. The Court has long held that evidence which
requires medical knowledge must be provided by someone
qualified as an expert by knowledge, skill, experience,
training, or education. See Espiritu, supra. Nothing in the
claims folder shows that the veteran has any of these
necessary qualifications to render a medical opinion. While
the veteran may present competent lay evidence that she
experiences symptoms of a psychiatric disability, she is not
competent to establish that those symptoms constitute PTSD.
See Caluza, Grottveit, both supra.
The RO has obtained the veteran's military service records,
including service medical records. While the service records
show that the veteran fell and broke her right wrist in March
1989 during service, they do not demonstrate that the fall
was precipitated by a sexual assault. The service records
are likewise negative for any evidence in support of the
veteran's contentions that she experienced a second sexual
assault in June 1989. According to the veteran, she reported
the second sexual assault and there was an investigation but
the charges were dismissed. The RO requested the
investigation report from the United States Army Crime
Records Center and was informed that there were no such
record.
In addition, although the veteran told the examiner at the VA
examination in August 1997 that she reported the first sexual
assault to her friends and family, the evidence contains no
lay statements from her friends or family members that she
told them of that incident.
The evidence of record does not provide a well-grounded claim
for service connection for PTSD. Pursuant to Robinette, even
presuming that the veteran's
statements are credible as to the occurrence of the sexual
assaults in service, there is no competent evidence that the
veteran currently has PTSD. Accordingly, the veteran has not
submitted a well-grounded claim for service connection for
PTSD and it must be denied.
II. Evaluation of Service-Connected Right Wrist Disability
A. Factual Background
The service medical records show that the veteran fractured
the distal radius of her right wrist in March 1989 while she
was in service. Private medical records dated from March
1989 to March 1992 show that she continued to receive
treatment for her wrist. Records dated in 1990 show that she
complained of pain and weakness in the right wrist. A record
dated in January 1990 notes that X-rays looked normal. The
veteran still had tenderness in the scapholunate area and the
triangular fibrocartilage area. A medical record dated in
February 1990 notes that an MRI of the wrist looked normal.
There was only one small area at the triangular fibro-
cartilage. She reported pain in that area, in the median
nerve area, and along the radial side. A record dated in
August 1990 notes that an arthrogram showed a tear of the
triangular fibrocartilage. The veteran underwent arthroscopy
of the wrist with excision of the triangular fibrocartilage
in September 1990. A medical imaging report dated in January
1991 notes that a MRI showed status post resection of the
triangular fibrocartilage. The course of the ulnar nerve had
normal appearance and no cause for impingement was seen.
Later in January 1991, the 1/3 tubular plate and four screws
were removed from the right distal ulna. An operative report
dated in February 1991 shows that the veteran underwent
osteoplasty of the right ulna (ulna shortening). Another
treatment record dated in March 1992 notes that the veteran
had full range of motion of the wrist, no pain, and excellent
muscle tone.
A VA X-ray report of the right wrist dated in June 1997 notes
that a small bony fragment was seen near the olecranon
process. A fracture in that area, age undetermined, could
not be excluded. There was some bony deformity of the distal
ulna and some old trauma in that area could not be ruled out.
A VA examination in July 1997 shows that the veteran is
right-handed. The veteran reported the history of her right
wrist disorder. Subsequent to the fracture in March 1989,
she had had two surgeries, one for a fibrous cartilage tear
and the other in which her ulna was shortened. The veteran
complained that she currently had a constant, aching pain in
her wrist. She reported that she was unable to lift heavy
pots, she could lift approximately one gallon of milk, and
she was unable to tolerate typing or writing for long periods
of time. On examination, there was a 7.5 centimeter well-
healed surgical scar which was mobile over the ulnar aspect
of her forearm. She had crepitus in her right wrist. There
was no laxity. Range of motion of the right wrist was 72
degrees of extension, 68 degrees of palmar flexion, radial
deviation to 18 degrees, and ulnar deviation to 28 degrees.
There was no angulation, no false motion, and no shortening.
The X-ray appeared to have a distal ulnar well-healed
fracture.
In rating decision of February 1998, the RO granted service
connection for postoperative right wrist fracture and
assigned a 10 percent rating, effective from June 4, 1997,
pursuant to Diagnostic Code 5299-5215.
B. Analysis
In general, an allegation of increased disability is
sufficient to establish a well-grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). The Board finds that the facts relevant to the issue
on appeal regarding the evaluation of the service-connected
right wrist disability have been properly developed and that
the statutory obligation of VA to assist the veteran in the
development of this claim has been satisfied. 38 U.S.C.A. §
5107(a).
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule). 38
C.F.R. Part 4 (1999). The percentage
ratings contained in the Rating Schedule represent, as far as
can be determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§ 4.1 (1999). Separate diagnostic codes identify the various
disabilities. In determining the disability evaluation, VA
has a duty to acknowledge and consider all regulations which
are potentially applicable based upon the assertions and
issues raised in the record and to explain the reasons and
bases for its conclusions. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1
and 4.2 (1999) which require the evaluation of the complete
medical history of the claimant's condition. These
regulations operate to protect claimants against adverse
decisions based on a single, incomplete, or inaccurate
report, and to enable VA to make a more precise evaluation of
the level of the disability and of any changes in the
condition. Schafrath, 1 Vet. App. at 593-94 (1991).
Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. The functional loss may be due to absence of part
or all of the necessary bones, joints and muscles, or
associated structures, or to deformity, adhesions, defective
innervation, or other pathology, or may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38
C.F.R. § 4.40.
The factors of disability effecting joints are reduction of
normal excursion of movements in different planes, including
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, pain
on movement, swelling, deformity, or atrophy of disuse.
38 C.F.R. § 4.45.
In the instant case, the veteran is technically not seeking
an increased rating, since her appeal arises from the
original assessment of a disability rating. When a veteran
is awarded service connection for a disability and
subsequently appeals the initial assessment of a rating for
that disability, the claim continues to be well grounded.
Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v.
Brown, 8 Vet. App. 218, 224 (1995).
In Fenderson, it was held that evidence to be considered in
the appeal of an initial assignment of a rating disability
was not limited to that reflecting the then current severity
of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58
(1994). In that decision, the Court also discussed the
concept of the "staging" of ratings, finding that, in cases
where an initially assigned disability evaluation has been
disagreed with, it was possible for a veteran to be awarded
separate percentage evaluations for separate periods based on
the facts found during the appeal period. Fenderson, 12 Vet.
App. 119.
When there is a question as to which of two evaluations
should be applied to a disability, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (1999). Any reasonable doubt regarding the degree of
disability will be resolved in favor of the claimant. 38
C.F.R. § 4.3 (1999).
The right wrist disability is rated under 38 C.F.R. 4.71a,
Diagnostic Code 5299- 5215, which is a rating by analogy to
limitation of motion of the wrist. See 38 C.F.R. §§ 4.20,
4.27. Diagnostic Code 5215 authorizes a 10 percent rating
for limitation of motion of the wrist (major or minor), if
dorsiflexion is less than 15 degrees or palmar flexion is
limited in line with the forearm. This is the maximum rating
possible under Diagnostic Code 5215. Diagnostic Code 5214
provides various ratings for ankylosis of the wrist.
The current 10 percent evaluation for the right wrist
disability appears to be based, according to the diagnostic
code used, on limitation of motion. The most recent medical
evidence, the July 1997 VA examination report, shows that
dorsiflexion is not less than 15 degrees and palmar flexion
is not limited in line with the forearm.
Accordingly, the evidence does not even support the current
10 percent rating using Diagnostic Code 5215. However, at
the July 1997 examination, the veteran had complaints of pain
and functional limitations, and the examination revealed
crepitus and some limitation of motion in the right wrist. A
10 percent rating is the maximum evaluation available under
Diagnostic Code 5215.
The evidence does not show that the veteran has ankylosis of
the right wrist. Accordingly, a rating in excess of 10
percent is not warranted under Diagnostic Code 5214.
The evaluation of a musculoskeletal disability requires
consideration of all of the functional limitations imposed by
the disorder, including pain, weakness, limitation of motion,
and lack of strength, speed, coordination or endurance. See
Spurgeon v. Brown, 10 Vet. App. 194 (1997). The evidence
shows that the veteran has some limitation of function of the
right wrist. However, she has been granted the maximum
schedular rating available for limitation of motion of the
wrist under Diagnostic Code 5215 (the only applicable
diagnostic code), and the consideration of an additional
rating based on the limitation of function is not warranted.
See Johnston v. Brown, 10 Vet. App. 80 (1997).
An increased rating could apply if the case presented an
exceptional or unusual disability picture, with such factors
as marked interference with employment or frequent periods of
hospitalization, as to render impractical the application of
the regular schedular criteria. 38 C.F.R. § 3.321(b)(1)
(1999). In an April 1998 statement, the veteran noted that
her career as a production assistant and stagehand had been
diminished because she was no longer able to lift, push or
pull the equipment. This, however, is not evidence of marked
interference with employment. The evidence also does not
demonstrate frequent periods of hospitalization for treatment
of the service-connected right wrist disability.
Accordingly, there has been no showing that the application
of the regular schedular criteria is impractical.
ORDER
Service connection for PTSD is denied.
A rating in excess of 10 percent for the right wrist
disability is denied.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals